War Crimes, Law and Humbug
After World War Two, a legal framework to punish Nazi war criminals was established. Just recently, an attempt to establish a similar framework for Nazi war criminals in this country has been thrown out by the House of Lords. Brendan Clifford asks if law ever had anything to do with the matter.
The dispute over the Bill to enable alleged War Criminals of World War Two to be tried in English courts as if they were bank robbers raises again the question of whether the Nuremberg Trials had anything to do with law.
Critics of the Trials at the time held that they violated the principle that there could not properly be judicial punishment of acts which were not in breach of a law existing at the time they were committed. Defenders of the Trials replied to this on the lines that the Ten Commandments were a universal law for mankind. It was an unconvincing reply at that
A more realistic defence of the Trials would have admitted that they were not being conducted in enforcement of a pre-existing law, and argued that they were vital because they were establishing law in a sphere where it had hitherto not existed.
The victor states might legitimately have used their moral ascendancy in the world in the years after 1945 to shape the widespread revulsion against Nazism and the desire for vengeance into a system of international law.
Spinoza, the great realist philosopher of modem times, said point blank that law had no place in relations between states. Law operated within states, not between states. Relationships between states occurred in a state of nature. And in a state of nature conflicts are resolved by force.
When Napoleon left Elba in 1815 to resume his military career, Wellington issued a declaration that he had “rendered himself liable to public vengeance.” It would have been entirely honourable if the victorious powers had adopted a similar attitude towards the Nazi leaders and their major collaborators in 1945. Stalin – like Spinoza, a moral realist – wanted to conclude the war with an exemplary act of vengeance. But the American and British leaders insisted that it be concluded by due process of law, as if it had been an outburst of rioting. They found Stalin’s moral realism distasteful. But the alternative turned out to be moral humbug.
The Nuremberg Trials debased the concept of law, not because they were held without a pre-existing framework of international law, but because they did not lead to the establishment of a framework of international law.
Law does not begin with legislation. Legislation comes very late into the historical evolution of law.
Sir Frederick Maitland, the incomparable historian of English law, said that law began with the enforcement of judgments. It is in its execution that the law bites. A system of law exists when judgments are given by courts acting on some general principle and are enforced. In the first instance the law of England was a systematic expression of the will of the King – of the will of Henry II. Law began as part of government. The making of laws by a legislative assembly began a great many years later.
There would have been nothing improper about the enforcement of judgments at Nuremberg despite the absence of a prior system of international law if the Nuremberg Court had acted consistently with its pretensions, and if the principles of law enunciated at Nuremberg had been given permanence in the form of judicial institutions with effective means of enforcing judgment. But the Nuremberg Trials rendered themselves one of the greatest shams in history both by the way they conducted themselves and by the fact that the system of law to which they purported to give effect was discarded as soon as the Germans had been punished.
The Kremlin now admits responsibility for the Katyn massacre. Everybody with any sense has known ever since the Nuremberg Trials that Katyn was a Russian massacre. It was on the charge sheet against the Germans at Nuremberg. But when it became evident that the German defendants, despite the restrictions imposed on them by the Court, would be able to demonstrate Russian responsibility, the Court was instructed to exclude Katyn from its proceedings.
The Nuremberg judges became humbugs when they took orders to omit Katyn from the proceedings in order that the German defence should not be heard, and when on the charge of conspiracy to wage war they ruled that the Germans might not submit in their defence the text of the Nazi/Soviet Treaty of 1939. Of course if they had not taken their orders the Court would have been disbanded. Stalin had no intention of being named as a war criminal in the show trials at the end of the war which he had won.
States cannot be made subject to enforceable international law, and laws which are in the nature of things unenforceable are not laws but mere opinions. In the old Kingdom of Poland, back in the 16th century, there were unenforceable fictions called laws. There were even courts which gave judgments on the basis of those laws. But the state made no provision at all for the enforcement of judgments. Law existed in complete disconnection from the power of government. If you got a judgment in your favour and the other party declined to submit to it voluntarily, your only means of having it enforced was to raise a private army and enforce it by direct action. And the other party incurred no additional punishment by resisting enforcement. Poland, which had much law but no government, was taken apart by states which had effective government though they had little law.
(There was a tendency within Thatcherism in the early 1970s which aspired to disconnect government from law in Britain. It unwittingly reproduced in fantasy the condition of things which had actually existed in Poland.)
International law is an even more vacuous thing than the Polish law of the 16th century. Its enforcement cannot even be left to direct action by one of the parties, because in relationships between states direct action is war.
States cannot be prosecuted for crimes because they cannot be put in the dock until they are destroyed, until they have ceased to exist. Of course the leading personnel can then be put in the dock by the victorious state and treated as never having been anything but a criminal conspiracy, a Mafia. That is what was done at Nuremberg.
A standard justification of Nuremberg and of war-crime trials 45 years after the event is that such things serve as a warning to others. But it is obvious that they do not serve as a warning to others. ‘Crimes against humanity’ are the safest crimes to commit, because they are committed by states. The era of the Nuremberg Trials was also the era in which the United Nations was established. The United Nations decreed that the world properly consists of sovereign nation-states. It exhorted those states to abide by certain standards in their internal affairs, but it provided for no remedy in case they did not And it is now a very serious matter indeed when a state which has the power to do so takes direct action to punish what it sees as criminal behaviour by another state. America just about managed it in Panama. But Vietnam was reprimanded for attempting it in Cambodia, and it is distinctly possible that Pol Pot will return to power because of the United Nations.
The Nuremberg trials do not serve as a warning to the leaders of states because their lesson is that states which continue in being are a law unto themselves. And they do not serve as a warning to the citizens of states because they did not make sufficient impact in the world to be taken into consideration by citizens of states in which ‘crimes against humanity’ are being committed.
“Man is a political animal”, according to Aristotle, meaning that human nature is determined in very great part by the individual’s political . environment And the determining environment is not the ghostly thing called ‘international law’, but the particular state, with its actual modes of government, politics, law and culture.
Nazi Germany is abhorrent chiefly because it took in earnest and applied systematically in government in a large modem state the category of ‘race’ which had existed from time immemorial and which had been given pseudo-scientific development from time immemorial. Hitler recreated a Germany which had been disoriented by the Versailles Treaty. He did it through a combination of Keynesian economics and racist social conceptions. After a generation of war and social chaos he provided a stable framework of life along with a sense of adventure. He generated a great feeling of permanence in Germany. And in parts of Eastern Europe he enlisted the support of people who had had sharp experiences of Bolshevik rule – and might have enlisted a lot more support if he had been less sincere in his racist idealism.
A great proportion of people everywhere are impressed by mere power and take their standards from it. Millions of people in Germany and Eastern Europe took their standards from Nazi Germany. When a greater power prevailed and held Nazi Germany up to public detestation most of those people, given half a chance, adapted to the new order and began their lives again according to its ideals.
If a few of these are now located and put on trial in England, will that deter Iraqis from killing Kurds at the behest of Saddam Hussein?
I find it strange that while the principle of individual responsibility is being displaced by notions of social determination of crime within the stable framework of life in Britain, an extreme version of personal responsibility is being applied in the case of some unfortunate Lithuanians whose world was turned upside-down two or three times within a period of five years in their youth.
Meanwhile there is in Dublin a great war-criminal who will die one of these years loaded with honours. I refer to Francis Stuart, a fascist novelist who made his way with considerable difficulty to Berlin in 1940 to serve the cause. He served the cause to the bitter end. And then he wrote a further series of novels explaining it all away. He is now one of the Grand Old Men of Irish letters. If this intellectual who made a gift of himself to the Nazis deserved a second chance, those Lithuanians who never had anything but a choice of evils deserve it much more.
This article appeared in July 1990, in Issue 18 of Labour and Trade Union Review, now Labour Affairs. You can find more from the era at https://labouraffairsmagazine.com/very-old-issues-images/.